People v. Rucker

94 A.D.2d 948, 464 N.Y.S.2d 73, 1983 N.Y. App. Div. LEXIS 18419

Opinion

— Judgment unanimously modified, on the law and facts, in accordance with memorandum, and, as modified, affirmed and defendant remanded to Monroe County Court for resentencing. Memorandum: There is insufficient evidence in the record to support the jury’s determination that either of the victims sustained “serious physical injury” (Penal Law, § 10.00, subd 10). The opinion of the physician testifying for the prosecution was conjectural and based upon too many contingencies to support the conclusion that the lacerations “created a substantial risk of death.” His testimony that the lacerations, if untreated, could result in “serious and protracted disfigurement” does not prove serious physical injury, since the statute requires not that such disfigurement could result, but that it actually did result. The evidence was sufficient, however, to support convictions of the lesser included offense of assault in the second degree (Penal Law, § 120.05, subd 2). Accordingly, we modify the judgment by changing the convictions, as to both counts, from assault in the first degree to assault in the second degree (CPL 470.15, subd 2, par [a]). (Appeal from judgment of Monroe County Court, Bergin, J. — assault, first degree.) Present — Doerr, J. P., Denman, Boomer, Green and Schnepp, JJ.